Friday, June 24, 2011

A Legal Historian’s First Book, Part VIII: Doctrine, Clarity, and Context

Posted by
Serena Mayeri

Perhaps the third chapter of my book should have been called
“Things Fall Apart.” This title would reflect both the subject of the chapter—a
series of crises feminists confronted in the mid-1970s—as well as my struggle
with the chapter’s narrative flow. In “Recession, Reaction, Retrenchment,” I
try to integrate economic and political background with specific examples of
how race-sex analogies grew more problematic in the mid-1970s as an increasingly
conservative polity entertained second thoughts about the civil rights
revolution. The content of the chapter remained unusually stable, but I must
have switched the order at least a dozen times before finding a structure that
made sense (to me, at least) both chronologically and thematically.

Part of my problem stemmed from the inherent tensions
between writing about (often dense) legal doctrines and strategies, and
situating the twists and turns of constitutional argumentation within a larger
political and social context. When I gave several chapter drafts to a brilliant
historian friend who is not a lawyer, her exclamations of confusion and ennui
in the margins of the more “legal” sections reminded me that not everyone is as
interested as I am in the behind-the-scenes machinations of lawyers, judges,
and their clerks. Moreover, she noted, terms like “strict scrutiny” and “disparate
impact” require clear and concise explanations the first time they are
mentioned.

Eventually, I decided that Chapter 3 should open with a
snapshot of economic recession and political polarization seen through the eyes
of Eleanor Holmes Norton and Aileen Hernandez, protagonists familiar to the
reader from the preceding chapter. Then I would ease into the chapter with the
least doctrinal section—a profile of Phyllis Schlafly and her cooptation of
race-sex analogies for decidedly anti-feminist (and, more subtly, racially
conservative) purposes. The prolific Schlafly, always a gifted rhetorician,
became more legally fluent and savvy over the course of the 1970s, as she
earned a law degree and frequently debated the ERA with feminist lawyers. At
the same time, most of her writing from this period is directed toward a
popular audience and requires no translation from legalese. After using
Schlafly to introduce several of the chapter’s themes, I could then plunge into
my examples of feminists’ difficulties in deploying race-sex parallels,
exploring contexts including pregnancy discrimination, sex-segregated
education, and the collision of “benign” sex classifications and race-based
affirmative action in the Supreme Court.

The challenge of writing accessibly became even more acute
in Chapter 4, “Reasoning from Sex.” At its low point, this draft chapter was a
sprawling morass of complicated doctrinal twists and turns, at times an unrelenting
march through caselaw unleavened by context or color. Several generous
colleagues helped me wrestle this behemoth of a chapter to the floor and their
tips bear repeating:

1.1. Begin each chapter with a short anecdote that
captures an important piece of context or a central argument of the chapter.

2.2. Be sure that you can state the argument of each
chapter in a couple of sentences, and summarize it in a paragraph.

3.3. Write short, punchy topic sentences. A reader
should be able to glean the gist of the chapter from reading the first sentence
of each paragraph.

4.4. As tempting as it may be, don’t include more
than two or three quotations/pieces of evidence in each paragraph.

5.5. A book is not a law review article and should
not be clogged with road-maps and redundant summaries. Don’t repeat yourself,
or give away the ending at the beginning of a chapter.